Gujarat High Court
State Of Gujarat vs Chaturbhai Vitthalbhai Prajapati on 10 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1044 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or
any order made thereunder ?
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STATE OF GUJARAT
Versus
CHATURBHAI VITTHALBHAI PRAJAPATI
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Appearance:
MS. C.M.SHAH, APP for the Appellant(s) No. 1
MS JEMINI S PATEL(10140) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 10/09/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant - State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the judgment and order of acquittal dated 06/12/2007
passed by the learned Special (ACB) Judge, Kacchh-Bhuj
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(hereinafter referred to as the learned trial Court) in Special
(ACB) Case No. 63 of 1993, whereby, the learned trial Court
was pleased to acquit the respondent from the offences
punishable under Sections 7, 12, 13(1)(d) and 13(2) of the
Prevention of Corruption Act (herein after referred to as 'the
P.C.Act'). The respondent is hereinafter referred to as 'the
accused' as he stood in the original case, for the sake of
convenience, clarity and brevity.
2] The brief facts that emerge from the record of the
case are as under:-
2.1] In the year 1992, the accused was working as Talati-
cum-Mantri Kothara Group Gram Panchayat and was a public
servant. That the complainant Arjanji Bauji Sodha residing at
Paiya, Taluka Abdasa District, Kachchh met the accused along
with Umarsang Vaghji Sodha of village Bhedi to mutate his
name and his brother's name in the revenue record as legal
heirs as his father had expired. The accused demanded an
amount of illegal gratification of ₹400/- and told the complainant
that he would have to pay ₹200/- before the work was done and
the remaining, after the work was done, and as the complainant
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had ₹200/- with him, he gave the amount to the accused, and
the remaining amount was to be paid at a late date. The accused
met the complainant on 02/02/1992 at the Kothara bus stand
and the accused told the complainant that his farmer book was
ready and to come on the next day with the ₹200/- and to collect
the same. The complainant did not want to pay the amount of
illegal gratification and ACB Police Station, Kachchh @ Bhuj and
filed the complaint under Section 7, 12, 13(1)(d) and 13(2) of
the P.C. Act, which was registered at C.R.No. 2 of 1992 on
03/02/1992.
2.2] The Trap Laying Officer called the panch witnesses
and introduced the complainant and the complainant to the
panch witnesses gave four currency notes of the denomination
of ₹50/- each to the Trap Laying Officer. Under instructions of
the Trap Laying Officer, Police Constable Pravinbhai Mankad
took the currency notes and conducted the demonstration of
anthracene powder and ultraviolet lamp in the presence of the
complainant and the panch witnesses and the characteristics of
anthracene powder and ultraviolet lamp were explained to the
complainant and the panch witnesses. The currency notes were
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smeared with anthracene powder by Police Constable
Pravinbhai Mankad and placed in the left shirt pocket of the
complainant and the Trap Laying Officer gave necessary
instructions to the complainant and the panch witnesses and
panchnama Part-I was drawn. The panch witnesses and the Trap
Playing Officer affixed their signatures on the panchnama Part-I
and the trap was arranged. As decided the complainant, panch
witnesses and members of the raiding party left in the
government vehicle and went to Kothara village and the
complainant and the shadow witness went on foot to the Gram
Panchayat Office and the Panch No. 2 and other members of the
raiding party followed them. The complainant and the witness
met the accused and the complainant asked for the farmers
book and the accused told the complainant that one book was
ready and he would prepare and give him the other book and
demanded for the amount of illegal gratification. The
complainant took the tainted currency notes from his left pocket
and gave it to the accused and the accused accepted the amount
and counted the same and kept one currency note of the
denomination of ₹50/- on the table and asked the complainant to
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take the amount and placed the remaining amount in his left
shirt pocket. That they all had tea and on the pretext of smoking
a Beedi, the shadow witness came out of the Panchayat Office
and gave the predetermined signal, and the members of the
raiding party came and caught the accused. The tests were
conducted and tainted currency notes were recovered from the
possession of the accused and panchnama was drawn and the
panch witnesses, and the Trap Laying Officer affixed their
signatures on the Panchnama Part II.
2.3] The Investigating Officer recorded the statements of
the collected witnesses and the necessary documents including
the service record of the accused as also the sanction of
prosecution were received and a charge-sheet came to be filed
before the learned Session Court, Kachchh at Bhuj, which was
registered as Special Case No. 63 of 1993.
2.4] The accused was duly served with the summons
and the accused appeared before the learned trial Court and
after the due procedure of Section 207 of the Code of
Criminal Procedure, 1973 was followed, a charge at Exh: 8
was framed against the accused and the statement of the
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accused was recorded at Exh: 9. The accused denied all
contents of the charge and the evidence of the prosecution
was taken on record.
2.5] The prosecution produced the following oral as well
as documentary evidences in support of their case.
ORAL EVIDENCE
Sr. Prosecution Name of the witnesses Exhibits
No. Witness
DOCUMENTARY EVIDENCE
Sr. Name of the particulars Exhibits
No
1 Permission letter Exh:18
2 Panchnama Exh:23
3 Seizure Memo Exh:22
4 Complaint Exh:27
5 Demand Letter Exh:28
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7 Demand Letter Exh:30
9 Letter of District Development Officer Exh:32
10 Appointment order of accused Exh;33
11 Transfer order of accused Exh:34
2.6] After the closing pursis was filed by the learned
Additional Public Prosecutor at Exh:35, the further statement of
the accused under Section 313 of the Code Of Criminal
Procedure, 1973 was recorded, wherein, the accused denied all
the evidence produced by the prosecution and after the
arguments of the learned Additional Public Prosecutor and the
learned Advocate for the accused were heard, the learned trial
Court was pleased to pass the impugned judgment and order of
acquittal.
3] Being aggrieved and dissatisfied with the judgement
and order of acquittal, the appellant-State has filed the present
appeal mainly stating that the order of acquittal is contrary to
law and evidence on record of the case and the learned trial
Court has erred in holding that the prosecution has failed to
establish its case beyond reasonable doubts. The learned trial
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Court, without appreciating the evidence in its real prospective,
has acquitted the respondent and has committed a grave error
in not believing the story of the prosecution, even though the
prosecution has proved the case beyond reasonable doubts by
leading cogent, reliable and impeachable evidence. The learned
trial Court has not appreciated the deposition of the
complainant, who has fully supported the case of the
prosecution and from the deposition of the complainant, the
ingredient of demand, acceptance and recovery have been
proved beyond reasonable doubts. The tainted currency notes
have been recovered from the pocket of the respondent and all
the currency notes matched with the currency notes mentioned
in the panchnama Part-I. The learned trial Court has not
considered that the sanction for prosecution has been given by
the sanctioning authority after proper application of mind, and
after going through all the papers available and the procedure
of the Panchnama was completed in the presence of panch
witnesses, who are an independent witness. The trial Court has
not appreciated the evidence of the panch witness as also the
Trap Laying Officer and both the witnesses are fully supported
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the case of the prosecution. However, the learned trial Court
has not appreciated the material set of evidence in its real truth
and spirit and has erroneously come to the conclusion that the
prosecution has not proved the case beyond reasonable doubts.
The conclusion arrived at by the learned trial Court is erroneous
and bad in law and without giving any cogent and substantial
reasons has passed the impugned judgement and order of
acquittal, which is contrary to law and evidence on record and is
required to be quashed and set aside.
4] Heard learned Additional Public Prosecutor Ms.
C.M.Shah appearing for the Appellant-State and learned
advocate Ms. Jemini S. Patel for the respondent. Perused the
impugned judgment and order of acquittal and have
reappreciated the entire evidence of the prosecution on record
of the case.
5] Learned Additional Public Prosecutor Ms. C.M.Shah
for the appellant-State has taken this Court through the entire
evidence of the prosecution and has submitted that the
prosecution has proved all the ingredients of demand,
acceptance and recovery, and the complainant has stated that
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he had earlier given the amount of ₹200/- to the respondent ,
who had demanded for the amount of illegal gratification to
mutate the names of the legal heirs of his father in the revenue
record and also to give the farmers book and on the date of the
trap, the respondent had accepted the tainted currency notes of
₹200/- in the presence of the panch witness. That these tainted
currency notes were recovered from the possession of the
respondent and the same is proved from the deposition of the
independent panch witness, who has fully supported the case of
the prosecution. The respondent has come up with a defence
that the amount was not for illegal gratification but was for the
outstanding amount of tax to be paid by the complainant but the
same is not believable as in the presence of the panch witness,
the respondent has demanded the amount of illegal gratification
and accepted the same and hence Additional Public Prosecutor
has urged this Court to allow the appeal and set aside the
impugned judgement and order of acquittal and find the
respondent guilty for the state offences.
6] Learned advocate Ms. Jemini S. Patel for the respondent
has submitted that the respondent was the Talati-cum-Mantri of
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Kothara Group Gram Panchayat and he was entitled to recover
the outstanding amount of tax from the villagers and it is on
record that the date of the trap, the complainant had given the
amount of ₹200/- to the respondent, but the respondent verified
the amount and returned the amount of ₹50/- back to the
complainant as an amount of ₹150/- was due as tax from the
brother of the complainant. That if the respondent had in fact
demanded the amount of illegal gratification, he would have
taken the currency notes and placed it in his pocket. In the
entire evidence of the prosecution, there is no evidence
regarding demand of illegal gratification made by the
respondent or that the respondent had accepted any amount of
illegal gratification but the amount that was accepted was the
amount for the outstanding tax, which has been recovered from
the possession of the respondent. The learned trial Court has
appreciated all the evidence in proper perspective and in a well
reasoned judgement has passed the impugned judgement and
order of acquittal and learned advocate for the respondent has
urged this Court to reject the appeal of the appellant.
7] At the outset, before discussing the facts of the
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present case, it would be appropriate to refer to the
observations of the Apex Court in the case of Mallappa & Ors.
Vs. State of Karnataka passed in Criminal Appeal No.1162
of 2011 on 12.02.2024, wherein, the Apex Court has observed
in Para Nos. 24 to 26, as under:
"24. We may firstly discuss the position of law regarding the scope of
intervention in a criminal appeal. For, that is the foundation of this
challenge. It is the cardinal principle of criminal jurisprudence that
there is a presumption of innocence in favour of the accused, unless
proven guilty. The presumption continues at all stages of the trial and
finally culminates into a fact when the case ends in acquittal. The
presumption of innocence gets concertized when the case ends in
acquittal. It is so because once the Trial Court, on appreciation of the
evidence on record, finds that the accused was not guilty, the
presumption gets strengthened and a higher threshold is expected to
rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no
quarrel about that. It is also beyond doubt that in the exercise of
appellate powers, there is no inhibition on the High Court to re-
appreciate or re-visit the evidence on record. However, the power of the
High Court to reappreciate the evidence is a qualified power, especially
when the order under challenge is of acquittal. The first and foremost
question to be asked is whether the Trial Court thoroughly appreciated
the evidence on record and gave due consideration to all material pieces
of evidence. The second point for consideration is whether the finding of
the Trial Court is illegal or affected by an error of law or fact. If not, the
third consideration is whether the view taken by the Trial Court is a
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fairly possible view. A decision of acquittal is not meant to be reversed
on a mere difference of opinion. What is required is an illegality or
perversity.
26. It may be noted that the possibility of two views in a criminal case is
not an extraordinary phenomenon. The 'two-views theory' has been
judicially recognized by the Courts and it comes into play when the
appreciation of evidence results into two equally plausible views.
However, the controversy is to be resolved in favour of the accused. For,
the very existence of an equally plausible view in favour of innocence of
the accused is in itself a reasonable doubt in the case of the
prosecution. Moreover, it reinforces the presumption of innocence. And
therefore, when two views are possible, following the one in favour of
innocence of the accused is the safest course of action. Furthermore, it
is also settled that if the view of the Trial Court, in a case of acquittal, is
a plausible view, it is not open for the High Court to convict the accused
by reappreciating the evidence. If such a course is permissible, it would
make it practically impossible to settle the rights and liabilities in the
eyes of law. In Selvaraj v. State of Karnataka,
"13. Considering the reasons given by the trial Court and on
appraisal of the evidence, in our considered view, the view
taken by the trial Court was a possible one. Thus, the High
Court should not have interfered with the judgment of
acquittal. This Court in Jagan M. Seshadri v. State of T.N.
[(2002) 9 SCC 639] has laid down that as the appreciation of
evidence made by the trial Court while recording the acquittal
is a reasonable view, it is not permissible to interfere in
appeal. The duty of the High Court while reversing the
acquittal has been dealt with by this Court, thus:
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"9. ...We are constrained to observe that the High Court
was dealing with an appeal against acquittal. It was
required to deal with various grounds on which acquittal
had been based and to dispel those grounds. It has not
done so. Salutary principles while dealing with appeal
against acquittal have been overlooked by the High
Court. If the appreciation of evidence by the trial Court
did not suffer from any flaw, as indeed none has been
pointed out in the impugned judgment, the order of
acquittal could not have been set aside. The view taken by
the learned trial Court was a reasonable view and even if
by any stretch of imagination, it could be said that
another view was possible, that was not a ground sound
enough to set aside an order of acquittal."" (emphasis
supplied) In Sanjeev v. State of H.P., the Hon'ble
Supreme Court analyzed the relevant decisions and
summarized the approach of the appellate Court while
deciding an appeal from the order of acquittal. It
observed thus:-
"7. It is well settled that: -
7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial Court in
acquitting the accused must be dealt with, in case the
appellate Court is of the view that the acquittal rendered
by the trial Court deserves to be upturned (see Vijay
Mohan Singh v. State of Karnataka5, Anwar Ali v. State
of H.P.)
7.2. With an order of acquittal by the trial Court, the
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normal presumption of innocence in a criminal matter
gets reinforced (see Atley v. State of U.P.)
7.3. If two views are possible from the evidence on
record, the appellate Court must be extremely slow in
interfering with the appeal against acquittal (see
Sambasivan v. State of Kerala)."
7.1] In Para - 36, the Apex Court, in the case of Mallappa
(Supra), has observed as under:-
"36. Our criminal jurisprudence is essentially based on
the promise that no innocent shall be condemned as
guilty. All the safeguards and the jurisprudential values
of criminal law, are intended to prevent any failure of
justice. The principles which come into play while
deciding an appeal from acquittal could be summarized
as:-
(i) Appreciation of evidence is the core element of a
criminal trial and such appreciation must be
comprehensive - inclusive of all evidence, oral or
documentary;
(ii) Partial or selective appreciation of evidence may
result in a miscarriage of justice and is in itself a ground
of challenge;
(iii) If the Court, after appreciation of evidence, finds that
two views are possible, the one in favour of the accused
shall ordinarily be followed;
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(iv) If the view of the Trial Court is a legally plausible
view, mere possibility of a contrary view shall not justify
the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the
acquittal in appeal on a re-appreciation of evidence, it
must specifically address all the reasons given by the
Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the
appellate Court must demonstrate an illegality,
perversity or error of law or fact in the decision of the
Trial Court.
7.2] The Apex Court, in the case of Neeraj Dutta Vs.
State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme
(SC) 1248, has observed in Para No. 68 as under:
"68. What emerges from the aforesaid discussion is
summarised as under: -
(a) Proof of demand and acceptance of illegal
gratification by a public servant as a fact in issue by the
prosecution is a sine qua non in order to establish the
guilt of the accused public servant under Sections 7 and
13 (1)(d) (I) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the
prosecution has to first prove the demand of illegal
gratification and the subsequent acceptance as a matter
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of fact. This fact in issue can be proved either by direct
evidence which can be in the nature of oral evidence or
documentary evidence.
(c) Further, the fact in issue, namely, the proof of
demand and acceptance of illegal gratification can also
be proved by circumstantial evidence in the absence of
direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the
demand and acceptance of illegal gratification by the
public servant, the following aspects have to be borne in
mind:
(i) if there is an offer to pay by the bribe giver
without there being any demand from the public
servant and the latter simply accepts the offer and
receives the illegal gratification, it is a case of
acceptance as per Section 7 of the Act. In such a
case, there need not be a prior demand by the public
servant.
(ii) On the other hand, if the public servant makes a
demand and the bribe giver accepts the demand and
tenders the demanded gratification which in turn is
received by the public servant, it is a case of
obtainment. In the case of obtainment, the prior
demand for illegal gratification emanates from the
public servant. This is an offence under Section 13
(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the
bribe giver and the demand by the public servant
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respectively have to be proved by the prosecution as
a fact in issue. In other words, mere acceptance or
receipt of an illegal gratification without anything
more would not make it an offence under Section 7
or Section 13 (1) (d), (i) and (ii) respectively of the
Act. Therefore, under Section 7 of the Act, in order to
bring home the offence, there must be an offer which
emanates from the bribe giver which is accepted by
the public servant which would make it an offence.
Similarly, a prior demand by the public servant when
accepted by the bribe giver and inturn there is a
payment made which is received by the public
servant, would be an offence of obtainment under
Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand
and acceptance or obtainment of an illegal gratification
may be made by a Court of law by way of an inference
only when the foundational facts have been proved by
relevant oral and documentary evidence and not in the
absence thereof. On the basis of the material on record,
the Court has the discretion to raise a presumption of
fact while considering whether the fact of demand has
been proved by the prosecution or not. Of course, a
presumption of fact is subject to rebuttal by the accused
and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has
died or is unavailable to let in his evidence during trial,
demand of illegal gratification can be proved by letting in
the evidence of any other witness who can again let in
evidence, either orally or by documentary evidence or
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the prosecution can prove the case by circumstantial
evidence. The trial does not abate nor does it result in an
order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the
proof of the facts in issue, Section 20 mandates the Court
to raise a presumption that the illegal gratification was
for the purpose of a motive or reward as mentioned in
the said Section. The said presumption has to be raised
by the Court as a legal presumption or a presumption in
law. Of course, the said presumption is also subject to
rebuttal. Section 20 does not apply to Section 13 (1) (d)
(i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section
20 of the Act is distinct from presumption of fact referred
to above in point (e) as the former is a mandatory
presumption while the latter is discretionary in nature."
8] As per the settled principles of law, which are very
well crystallized with regard to the interference of the Appellate
Court in acquittal appeals, the evidence produced by the
prosecution must be re-appreciated and only if there is
perversity or illegality in the impugned judgment and order, an
interference of the Appellate Court would be warranted. It is
also settled that if two views are possible and the learned trial
Court has taken a view of acquitting the accused, the Appellate
Court should not interfere with the impugned judgment and
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order and it is open for the Appellate Court to re-appreciate the
evidence.
9] To bring home the charge against the accused, the
prosecution examined Prosecution Witness No. 1 at Exh: 15 and
the witness has stated that his father had agricultural land
situated in village Paiya and village Kothara. That he and his
brother were the legal heirs of his father, who had expired
earlier and he wanted to their names to be mutated in the
revenue recorded. That he went and met the accused, who told
him to give an application and to get the signatures of his
brother and mother and he had given the application on
15/10/1991. That at that time the accused demanded for the
amount of illegal gratification of ₹400/- and he went and gave
₹200/- to the accused, who told him that he would inform him
when the farmers books were ready. After fifteen days, the
accused met him at the Kothara bus stand and told him that the
books were ready and on the next day that is on 03/02/1992, the
complainant went to the ACB office and filed the complaint. The
ACB Officer asked him how much amount was to be given, and
he had given four currency notes of the denomination of ₹50/-
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each and Mankadbhai was told to apply powder on the currency
notes and the currency notes were folded and placed in his
pocket. The panch witnesses were given the necessary
instructions and they all had gone to village Kothara in the
government vehicle. That he and the panch witness went into
the Panchayat office and he demanded for the farmers book
from the accused, who told him that one book was ready but the
other book was not ready and to wait for sometime and he
would prepare the same. That he and the panch witness sat on
the bench and the accused was preparing the book and
thereafter demanded the remaining amount from him and he
took the currency notes from his shirt pocket with his right hand
and gave it to the accused and the accused accepted it with his
right hand and counted the same. The notes were four currency
notes of the denomination of ₹50/- each and the accused kept
three currency notes and returned one currency note and kept it
on the table and placed the remaining three currency notes in
his pocket. That the Peon came with tea and they all had tea and
at that time, there was another Talati and another person
present. Under the pretext of smoking a beedi, the panch
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witness came out of the office and gave the predetermined
signal and the members of the raiding party came and caught
the accused. The Panch No. 1 was asked to remove the amount
from the pocket and the test were done.
During the cross examination by the learned advocate for
accused, the witness has stated that he does not remember
when his father had expired and his father had a farmers book,
but the same was not deposited with the government. That his
brother had never gone to mutate his name in the Panchayat
office and he does not remember the exact date when he had
gone to the Panchayat office. That his brother and mother were
not called after the application was given and at the time of the
trap, there were two Talatis and one Mantri sitting in the same
room and he did not tell anyone else regarding the demand of
illegal gratification made by the accused. That when he met the
accused, the accused told him that one book was ready and the
other was to be made by him but he did not ask the accused,
why on the previous day, he had told him that he that the farmer
books were ready. That the accused had returned ₹50/- and told
him to take the same, but he left the money on the table.
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9.1] The prosecution has examined Prosecution Witness
No. 2 Vasantbhai Shaktidan Gadhavi at Exh:17 and the witness
is the competent authority, who has accorded the order of
sanction for prosecution, which is produced at Exh:18.
During the cross examination by the learned advocate for
the accused, the witness has stated that the original papers
were not sent for the order of sanction for prosecution and a
draft sanction order was also sent along with the papers. That
he did not call the Investigating Officer for discussion and the
tax on the land of the complainant and his brother was
outstanding and he did not inquire from the Investigating
Officer about this outstanding tax.
9.2] The prosecution has examine Prosecution Witness
No. 3 Vasantkumar Krishnalal Oza at Exh:21 and the witness is
the panch witness, who has fully supported the case of the
prosecution and has narrated all the incidents that had occurred
on 03/02/1992 when he and the other panch witness Jethalal
Aljibhai Joshi had gone to the ACB office at around 12:00 Hrs in
the afternoon. The witness has stated that the ACB office Jeep
had come to pick them and when they went to the ACB office,
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they met the complainant and the complainant informed them
that the accused was demanding the amount of illegal
gratification of ₹200/-. The complainant gave four currency
notes of the denomination of ₹50/- each and Mankadbhai was
called and he conducted the demonstration of anthracene
powder and ultraviolet lamp and smeared anthracene powder
on the currency notes and kept it in the left shirt pocket of the
complainant. Jethalal Aljibhai Joshi was instructed to be the
shadow witness and remained with the complainant, and the
witness was instructed to be along with the members of the
raiding party and they all went to Kothara village at around
02:10 in the Government vehicle. That when they reached
Kothara village, the complainant and Panch No. 1 went into the
office and after the Panch No. 1 gave the predetermined signal,
they all had gone and the tainted currency notes were removed
from the pocket of the accused by the Panch No. 1. The witness
has identified his signatures on the seizure memo produced at
Exh:22 and the panchnama, which is produced at Exh:23.
During the cross examination by the learned advocate for
accused, the witness has stated that at the time of the trap,
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there were two books on the table and the signatures were
affixed in one book and the accused had affixed his signatures
on the second book after they had reached. That the panchnama
was not dictated by the panch witnesses and the panchnama
was written at Kothara but the time is not mentioned in the
panchnama. That one currency note of the denomination of
₹50/- was lying on the table but in his presence, the Trap Laying
Officer did not inquire about the currency note. That the shadow
witness stated that three currency notes were placed by the
accused in his pocket and one currency note was returned to
the complainant, which was lying on the table and the Trap
Laying Officer did not ask the accused, why did he accept the
amount.
9.3] The prosecution has examined Prosecution Witness
No. 4 Devi Ladusingh Solanki at Exh:26 and the witness is the
Trap Laying Officer, who has fully supported the case of the
prosecution and has narrated in detail all the procedure that he
had undertaken on 03/02/1992, when the complainant Arjanji
Baubha Sodha residing at Paiya had come to the ACB Police
Station and filed the complaint, which is produced at Exh:27.
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The witness has stated that he called the panch witnesses and
instructed Police Constable Praveenbhai Mankad to conduct the
demonstration of anthracene powder and ultraviolet lamp, and
the characteristics of anthracene powder and ultraviolet lamp
were explained to the complainant and the panch witnesses. The
complainant gave four currency notes of the denomination of
₹50/- each, which were smeared with powder and placed in the
left shirt pocket of the complainant and necessary instructions
were given by him to the complainant and the witnesses. That,
they had gone to Kothara village and after the predetermined
signal was given, he and the Panch No. 2 and other members of
the raiding party rushed in the office and caught the accused.
The witness stated that, thereafter, he taken over the
investigation and had collected the documents regarding the
service record of the accused which are produced at Exh: 32 to
34 and on the day of the trap they had returned to Bhuj from
village Kothara and the complaint under Sections 7, 12, 13(1)(d)
and 13(2) was filed against the accused which was registered at
Bhuj ACB Police Station C.R.No. 2 of 1992 and after the
sanction of prosecution was received, he had filed the charge
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sheet before the Session Court.
During the cross examination by the learned advocate for
the accused, the witness has stated that the predetermined
signal was given by the Panch No. 1 and from the documents
seized from the accused, it was found that the complainant had
to pay the amount of outstanding tax.
10] On minute dissection of the entire evidence of the
prosecution, it is the case of the complainant that the accused
had demanded the amount of ₹400/- out of which an amount of
₹200/- was given earlier but the complainant has not stated the
date, the time or the place where the amount of ₹200 was given.
The complainant has stated that one day before filing of the
complaint, the accused met the complainant at the Kothara bus
stand and told him that the books were ready and to come the
next day and collect the same, but when the complainant went
to the Kothara Gram Panchayat on the next day, it appears that
only one book was ready and the other book was not ready, and
the accused told the complainant to wait till he would prepare
the same, but the complainant did not verify from the accused
as to why he was informed the previous day that the books were
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ready. That the complainant gave the currency notes of ₹200/-
to the accused and the accused counted the same and kept
₹150/- with him and returned ₹50/- to the complainant and there
is no explanation from the prosecution as to why the accused
accepted only the amount of ₹150/- when as per the case of the
prosecution, the amount of ₹200/- was demanded as illegal
gratification. From the documents seized by the Investigating
Officer, it has emerged on record that the revenue dues of the
complainant and his brother were remaining to be paid and an
amount of ₹150/- was outstanding to be paid by the brother of
the complainant and it appears that the defence of the accused
that the amount of ₹150/- was accepted as outstanding dues to
be paid on the land of the brother of the complainant is a very
plausible defence. That, if accused had in fact demanded the
amount of ₹200/- as a legal gratification, he would have
accepted the currency notes and placed them in his pocket and
would not have returned the currency note of ₹50/- to the
complainant.
11] As per the settled principles of law, the Appellate
Court would not ordinarily interfere with the order of acquittal
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unless after appreciation of the evidence, it appears that the
judgement and order of the learned trial Court is vitiated by
some manifest illegality and the conclusion arrived at by the
learned trial Court is such that would not be arrived at by any
reasonable person, and the decision is perverse. It is also settled
law that the presumption of innocence of the accused is
strengthened by the judgement of acquittal and the golden
thread, which runs through the web of administration of justice
in criminal cases is that when there are two views possible, the
view in favour of the accused must be adopted. An appellate
court has full power to reappreciate and reconsider the entire
evidence of the prosecution and would interfere only if there are
substantial and compelling reasons that the judgement is
perverse and illegal.
12] In view of the decision of the Apex Court in the case
of Mallappa (supra), this Court is of the opinion that the
learned trial Court has appreciated the entire evidence of the
prosecution and there does not appear to be any infirmity and
illegality in the impugned judgment and order of acquittal. The
learned Trial Court has appreciated all the evidence and this
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Court is of the considered opinion that the learned Trial Court
was completely justified in acquitting the accused of the charges
leveled against him. The findings recorded by the learned Trial
Court are absolutely just and proper and no illegality or
infirmity has been committed by the learned trial Court and this
Court is in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the
learned Trial Court. This Court finds no reason to interfere with
the impugned judgment and order and the present appeal is
devoid of merits and resultantly, the same is dismissed.
13] The impugned judgment and order of acquittal order
dated 06/12/2007 passed by the learned Special (ACB)
Judge, Kacchh-Bhuj in Special (ACB) Case No. 63 of 1993
is hereby confirmed.
14] Bail bond stands canceled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VVM
